We were alerted today to a New Administrative Regulation proposed by the Kentucky Department of Alcoholic Beverage Control. Simply titled “Growlers,” the regulation would codify, apparently for the first time, the rules for selling growlers in the state.

In case that’s tl;dr for you, there are three sections to the proposed rules:

Section 1 defines a growler as being a container with a screw-on or flip-topped lid no larger than two liters (about 67.6 oz.) in capacity. It’s not meant to include “…a vessel of similar size or capacity that is primarily used for the storage of other non-alcoholic liquids.”

Section 2 mostly deals with labeling issues. It says that persons filling growlers have to be employees of the licensee and at least 20 years of age and that sanitation rules are being defined in Section 3. It also says that growlers should have …

… a label affixed to it, legibly stating:
(a) The brand name of the product;
(b) The name and address of the brewer or bottler;
(c) The class of product (beer, ale, porter, lager, bock, stout, or other brewed or fermented beverage);
(d) The name and address of the licensee that filled or refilled the growler;
(e) The following statement, “This product may be unfiltered and unpasteurized. Keep refrigerated at all times.”; and
(f) The alcoholic beverage health warning statement as required by the Federal Alcohol Administration Act, 27 C.F.R. 16.20 through 16.22.

Section 3 deals with cleaning, sanitizing, filling and sealing the growler. The first subsection just says that growlers should only be filled or refilled at the request of customer. The second subsection details two methods of sanitizing a growler:

Using a commercial-style three-compartment sink. This method specifies using one compartment for cleaning, the second for rinsing, and the third for sanitizing the growler. Water temperatures are defined as well as the availability of a test kit that can check the sanitizer concentration is also specified.

Using a commercial dishwasher/sanitizer.

The third subsection of Section 3 details the a procedure for using a sanitized fill tube to fill the growler. It describes how the tubes need to rest in a container of sanitizing solution between fills and how there can be no fewer than five tubes available in any container. Tubes are changed after each fill, and there needs to be at least one sanitizing container for every 10 tap handles.

This regulation represents a change to how beer is sold in Kentucky inasmuch as there haven’t been any explicit regulations concerning growlers until now. When we heard about this we realized pretty quickly that we were out of our depth, so we reached out to Drew Murphy, GM at Party Town in Florence and, upon his recommendation, Karen Lentz, the spokesperson for the Kentucky Association of Beverage Retailers (KABR). Both were really patient in explaining the issue as they saw it.

Both Murphy and Lentz stressed that these are merely proposed rules at this point and the rules as proposed aren’t necessarily what’s going to be in the final regulations. As we understood them both, the rules governing growler sales in the past have been somewhat ad-hoc. A question would be put to ABC if this or that was allowable, and they’d issue a guideline. Not much was explicit. This proposal seems to be aimed directly at addressing that. Some things, like limiting the size of growlers, is just putting previous guidelines into the new rules. “You can’t put beer in a milk jug,” said Murphy. “That’s not a change.”

Lentz said that the KABR intended to ask for clarification on a number of points as part of the public comment process. For example — and this is our example, not hers — there’s more than one way to read the rules regarding sanitizing. Subsection (3) of that section begins:

(3) Except as provided in subsection (2) of this section, a growler may be filled or refilled without cleaning and sanitizing the growler by:[…]

The only problem is that the first sentence of Subsection (2) says:

(2) Prior to filling or refilling a growler, the growler and its cap shall be cleaned and sanitized by the licensee or its employee by:[…]

I’m no lawyer, but you could read that as “There’s a circumstance that allows you to fill a growler without cleaning and sanitizing the growler, but it can’t happen because you’re always required to clean and sanitize the growler.” Is that what they meant? We don’t know. We hope not. But this is definitely one of those situations where you don’t want to be begging for forgiveness later and risking a license. Better for it to be cleared up in advance.

The section on labeling seems to leave out some practical details. How big does the label have to be? Does it have be affixed with some kind of adhesive, or does a handwritten label suffice? What are the rationales for the items. Some are clearly tied to federal labeling laws, but is that true of all of them? Again, these are our questions, but we believe they fairly reflect the kinds of questions that the KABR will be putting forward.

There’s also a a question of why now? Growlers have been sold in the state for a number of years. Has there been a problem?

There is something you can do to let the KY ABC know what you think of the proposed regulations. The proposal states that “Written comments shall be accepted until June 30, 2014.” You need to send them to:

Your comments become part of the official written record, so you have to invest in a stamp to send in a comment. Don’t just take our summary as gospel either. Read the proposal. Read it more than once. It’s not exactly prose that sings. If you have a question about how something is going to be interpreted, put it in writing and send it down to Frankfort. All questions submitted have to be answered in writing in the document put forward to the committee that will ultimately approve any rules. If you have the question, someone else probably does too. If no one says anything the rules go through as written right now. That’s not likely to happen, realistically, but the only way to signal that that this issue is of interest to the public is if the public shows an interest. There’s no app for that, but the US Postal Service has had a lot of practice over the years taking mail from your house to pretty much anywhere you want it to go.

Because this became a story for us relatively late on a Friday afternoon, we did not reach out to Trey Hieneman at the KY ABC. We’ll raise some of the issues we brought up here with him next week and see what he says. We’ll definitely report on that. This could be something that winds up being a disincentive for retailers to keep and maintain growler systems,. That would be a real hit to the growing craft beer movement in Kentucky. On the other hand, this proposal could just as easily be rules that legitimately protect public health and helps brewers by making sure their product is being poured in a sanitary fashion. The story here doesn’t appear to be that these rules are good or bad. It seems to be that this is unclear. The good news is, there’s time to work that out.